In an important case for the care sector, R (Hartford Care Group Ltd) v Secretary of State for the Home Department [2024] EWHC 3308 (Admin), Hartford Care Group Ltd has successfully challenged the Home Office decision to refuse defined Certificate of Sponsorship requests.
Background
Care sector sponsors are now routinely asked to provide additional information to demonstrate a business need for sponsored workers, both for Certificate of Sponsorship requests and prospective sponsors applying for a licence.
Hartford Care Group Ltd requested 70 defined Certificates of Sponsorship (DCoS) prior to a major change in the rules in March 2024 which restricted care workers from bringing their dependants with them to the UK. Hartford Care Group anticipated that it would become more difficult to recruit staff following this change. It is important to note that this was not an unusual number of CoS for this sponsor who secured 93 in the previous year.
In January 2024 the Home Office requested additional information including:
“Copies of current official contracts or agreements to demonstrate your business has genuine vacancies related to your current request. These should only include contracts which demonstrate a guaranteed agreement to provide services, contracts which don't confirm specific agreements do not demonstrate a current and genuine vacancy.”
The company provided contracts from three local authorities, however the Home Office rejected the request on the basis that there were no guaranteed working hours and therefore the contracts did not demonstrate an immediate need for 70 workers.
Legal challenge
Hartford Care Group Ltd challenged the decision by way of judicial review, arguing that the rejection was unlawful on the basis that the Immigration Rules do not require guaranteed working hours in such contracts and the Home Office failed to adhere to policy in place at the time.
Decision
The High Court did not accept that the approach to assessing whether a job vacancy was genuine or not amounted to a new, unpublished policy. However, the High Court did find that the approach of the Home Office was irrational and unreasonable, and rejected that current vacancies cannot be assessed based on expected demand:
“…It was irrational and Wednesbury unreasonable for the Defendant to require care providers to provide contracts with specific requirements for guaranteed hours of work in order to show that the job was genuine. Such contracts simply did not exist as standard contracts in the care sector. The Defendant was requesting evidence that it was impossible for the Claimant and others to provide and which had little or no bearing about whether there was a particular job vacancy within one of their care homes.”
In coming to this judgment, the High Court reasoned:
- Job vacancies can be genuine without such a contract
- Standard contracts do not contain the provisions the Home Office required as they are designed to ensure a flexible provision of care workers to meet the needs of a local authority
- A business can have genuine vacancies without any local authority demand where it is providing services to individual service users and irrespective of any contract
- The requirement is based on the false assumption that local authorities will specify the number of service users, the number of staff required or commit to providing guaranteed working hours
What does this mean for care providers?
Sponsors with previous refusals in similar circumstances may consider reapplying in light of the decision.
It is important to note that sponsors will still need to demonstrate a need for workers through appropriate evidence. Home Office scrutiny of the care sector, including further information requests, continue and it is crucial for sponsors to be prepared, ensure compliance with genuine vacancy requirements and maintain accurate and comprehensive records.
For advice and assistance, please contact our Business and Skilled Migration team.